de Cruz v. Panizza

Filing 38

ORDER by Judge Thelton E. Henderson granting Defendants' 36 Motion for the Court to screen the second amended complaint. (Attachments: # 1 Certificate/Proof of Service)(tlS, COURT STAFF) (Filed on 5/15/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GERALD DEAN de CRUZ,

Case No.

15-cv-1930-TEH

Plaintiff,
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v.

ORDER

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A. PANIZZA,
Dkt. No. 36

Defendant.

United States District Court
Northern District of California

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Plaintiff, an inmate at San Quentin State Prison, filed this

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pro se civil rights action under 42 U.S.C. § 1983.

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dismissed and closed at screening, but Plaintiff filed an appeal.

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The Ninth Circuit affirmed in part, vacated in part, and remanded

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the case.

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the access to courts claim but remanded the case to consider

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Plaintiff’s allegation that Defendant improperly opened and read

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his legal mail.

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Plaintiff has filed a second amended complaint with additional

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claims and Defendants.

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screen the second amended complaint.

The case was

The Circuit found that the Court properly dismissed

The Court reopened the case and ordered service.

Defendants have requested the Court

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Federal courts must engage in a preliminary screening of

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cases in which prisoners seek redress from a governmental entity

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or officer or employee of a governmental entity.

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1915A(a).

28 U.S.C. §

The court must identify cognizable claims or dismiss

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the complaint, or any portion of the complaint, if the complaint

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“is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a

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defendant who is immune from such relief.”

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Pleadings filed by pro se litigants, however, must be liberally

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construed.

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Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir.

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1990).

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Id. § 1915A(b).

Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010);

To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two essential elements:

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United States District Court
Northern District of California

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Constitution or laws of the United States was violated, and (2)

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that the alleged violation was committed by a person acting under

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the color of state law.

West v. Atkins, 487 U.S. 42, 48 (1988).

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(1) that a right secured by the

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The Court previously ordered service on Defendant A. Panizza

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for the claim that he opened and read Plaintiff’s confidential

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legal mail.

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that Defendants Polanco and Mithcell were part of a conspiracy to

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deny Plaintiff’s inmate appeals and Defendant Davis is liable as

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a supervisor.

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Plaintiff repeats these allegations and also argues

Plaintiff is informed there is no constitutional right to a

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prison administrative appeal or grievance system.

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Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855

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F.2d 639, 640 (9th Cir. 1988).

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combination of two or more persons who, by some concerted action,

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intend to accomplish some unlawful objective for the purpose of

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harming another which results in damage.

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Westminster, 177 F.3d 839, 856 (9th Cir. 1999).

See Ramirez v.

A civil conspiracy is a

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Gilbrook v. City of
To prove a civil

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conspiracy, the plaintiff must show that the conspiring parties

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reached a unity of purpose or common design and understanding, or

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a meeting of the minds in an unlawful agreement.

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liable, each participant in the conspiracy need not know the

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exact details of the plan, but each participant must at least

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share the common objective of the conspiracy.

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Id.

To be

Id.

“In a § 1983 or a Bivens action – where masters do not

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answer for the torts of their servants – the term ‘supervisory

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liability’ is a misnomer.

Absent vicarious liability, each

Government official, his or her title notwithstanding, is only

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United States District Court
Northern District of California

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liable for his or her own misconduct.”

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U.S. 662, 677 (2009) (finding under Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544 (2007), and Rule 8 of the Federal Rules of

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Civil Procedure, that complainant-detainee in a Bivens action

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failed to plead sufficient facts “plausibly showing” that top

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federal officials “purposely adopted a policy of classifying

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post-September-11 detainees as ‘of high interest’ because of

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their race, religion, or national origin” over more likely and

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non-discriminatory explanations).

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Ashcroft v. Iqbal, 556

A supervisor may be liable under section 1983 upon a showing

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of (1) personal involvement in the constitutional deprivation or

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(2) a sufficient causal connection between the supervisor's

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wrongful conduct and the constitutional violation.

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Willden, 678 F.3d 991, 1003-04 (9th Cir. 2012) (citing Starr v.

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Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)).

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also show that the supervisor had the requisite state of mind to

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establish liability, which turns on the requirement of the

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particular claim — and, more specifically, on the state of mind
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Henry A. v.

A plaintiff must

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required by the particular claim — not on a generally applicable

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concept of supervisory liability.

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Student Alliance v. Ray, 699 F.3d 1053, 1071 (9th Cir. 2012).

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Plaintiff has failed to present sufficient allegations against

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the supervisor defendants.

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Oregon State University

Plaintiff alleges that Defendant Polanco spoke to him about

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his inmate appeal and said he would grant it but instead denied

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the appeal.

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Plaintiff his appeal was cancelled because Plaintiff previously

Plaintiff states that Defendant Mitchell told

refused to be interviewed, which Plaintiff states was false.

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United States District Court
Northern District of California

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Plaintiff’s allegations against Polanco and Mitchell fail to

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state a claim.

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administrative appeal system and Plaintiff has failed to

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demonstrate that there was any conspiracy between these

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Defendants.

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as a supervisor, based on the caselaw set forth above.

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There is no constitutional right to a prison

Nor has Plaintiff shown that Warden Davis is liable

The new Defendants are dismissed with prejudice from this

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action.

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claim that he opened and read Plaintiff’s confidential legal

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mail.

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to exhaust this claim, Defendant must file the appropriate

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motion.

The case continues against Defendant A. Panizza for the

To the extent that Defendant argues Plaintiff has failed

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III
For the foregoing reasons, the Court hereby orders as
follows:
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Defendant’s request for screening (Docket No. 36) is

GRANTED.
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The action continues on the claim that Defendant Panizza
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opened and read Plaintiff’s confidential legal mail.

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Defendants are DISMISSED.

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Service (Docket NO. 29) which remains in effect.

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3.

All other

The parties shall review the Order of

It is Plaintiff's responsibility to prosecute this case.

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Plaintiff must keep the court informed of any change of address

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by filing a separate paper with the clerk headed “Notice of

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Change of Address.”

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in a timely fashion.

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dismissal of this action for failure to prosecute pursuant to

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United States District Court
Northern District of California

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He also must comply with the court's orders
Failure to do so may result in the

Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.
Dated: 5/15/2017

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________________________
THELTON E. HENDERSON
United States District Judge

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